State v. Kansas City

• Decision Date: 31 December 1923
• Docket Number: No. 23592.,23592.
• Citation: 259 S.W. 1045,303 Mo. 50
• Parties: STATE ex rel. HAMILTON v. KANSAS CITY et al.
• Court: Missouri Supreme Court

259 S.W. 1045

303 Mo. 50

STATE ex rel. HAMILTON v. KANSAS CITY et al.

No. 23592.

Supreme Court of Missouri, Division No. 1.

December 31, 1923.

Motion for Rehearing Denied March 7, 1924.

Appeal from Circuit Court, Jackson County; James H. Austin, Judge.

Mandamus by the State, on the relation of Fred B. Hamilton, against Kansas City and others. Judgment for relator, and defendants appeal. Affirmed.

John B. Pew and George Kingsley, both of Kansas City, for appellants.

John I. Williamson, Darius A. Brown, and John G. Park, all of Kansas City, for respondent.

LINDSAY, C.

This is a proceeding in mandamus to compel reinstatement of relator in the position or employment of superintendent of buildings of Kansas City, and to require the payment to him of the compensation provided for that position during the period of his discharge from it, upon the claim that his discharge or removal was unlawful. The trial court granted the relief asked, and the city and those of its officials who were made defendants have prosecuted this appeal. The determination of the case involves in a general way a few main questions: The nature of the position held by relator, and of the tenure by which he held it; the character of the authority to he exercised in removing him, and the manner of its exercise; the form of relief sought. Incidentally other questions arise out of the court proceedings.

On March 9, 1908, there was approved an ordinance of Kansas City, numbered 38919, which is referred to in the record as the "Building Code," which regulated the construction, equipment, alteration, repair, and removal of buildings. It provided that "the head of the department of buildings shall be the superintendent of buildings; that he should be appointed by the mayor and confirmed by the upper house of the common council, at the beginning of the fiscal year 1908, and biennially thereafter, and that he should hold his office for the term of two years, and until his successor should be confirmed, unless sooner removed from office. This ordinance and these provisions were pursuant to the charter then in force, the charter of 1899.

On September 3, 1908, the present charter of Kansas City took effect. This charter made certain changes in the method of appointment and tenure of office of certain officers, and relator contends that certain of the changes are applicable to the office of superintendent of buildings. This charter contains in article 15 the Civil Service Law, creates a commission, and prescribes its powers and duties in the examination and selection of candidates for positions or appointments in the classified civil service Of the city. Section 3 of the article divides the civil service of the city into the exempt service and the classified service; section 4 designates the elective and other officers who are within the exempt service, that is, those appointive who are exempt from examination for appointment, and are not within the special protection of the civil service provisions. The members of the board of public works and its secretary are among those designated as in the exempt class. The superintendent of buildings is not one of those so designated. Section 5 provides that—

The "classified service shall comprise all officers and all positions in the city service not specifically designated in the exempt service, and shall be arranged into two classes to be designated respectively as the competitive class and labor class."

By section 6:

"The competitive class shall include all positions now existing or hereafter created of whatever function, designation or compensation in each and every branch of the civil service of the city except such positions as are in the exempt service, or the labor class."

The office or position of superintendent of buildings is not in the labor class, and is in the competitive class, beyond question. Under section 18 of the article on civil service it was provided that the incumbents of all positions at the time the charter should take effect, coming within the competitive class of the classified service, might continue in service until the beginning of the fiscal year 1910, and until the civil service board should have secured an eligible list and promulgated rules as provided by said section 3, whereupon said incumbents should be deemed to have vacated their positions. Until such time it was provided appointments and removals should be made and vacancies filled as elsewhere provided in this charter.

There are several sections of the civil service article which set forth the conditions and methods to be pursued in the examination of applicants for positions in the competitive service. Section 10 provides that the head of a department or office in which a position in the classified service is to be filled shall notify said board of that fact, and the civil service commission shall certify to the appointing officer the name and address of the candidate standing highest upon the eligible list for the class or grade to which said position belongs. The same section further provides:

"The appointing officer shall notify said commission of each position to be filled separately, and shall fill such place by the appointment of the person certified to him by said commission therefor."

On July 22, 1910, an examination was held by the commission of candidates for the position of superintendent of buildings. On August 12, 1910, the civil service commission notified relator in formal manner that in this examination he had received a rating of 94.15 per cent. and that his rating entitled him to first niece on the eligible list. Relator presented this notice to the mayor, Darius A. Brown. On August 17, 1910, the mayor delivered to relator a certificate as follows:

"This is to certify that on the 17th day of August, 1910, the mayor of Kansas City, Mo.; did appoint F. B. Hamilton to fill the office of superintendent of buildings of said city."

This certificate, it may be noted, was made upon a form originally containing the recital that the appointment was made "by and with the consent of the upper house of the common council," at a meeting duly held. This recital was erased in the certificate. On the same day the relator filed with the city clerk this appointment, with his oath of office subscribed thereon, filed the required bond, and took charge of the office of superintendent of buildings, and was so recognized by the board of public works, and continued from that time in the discharge of the duties of that office until his removal on May 31, 1918.

The circumstances attending relator's removal as shown by the record are as follows: On May 31, 1913, the secretary of the board of public works informed relator that he had been requested to demand relator's resignation. Relator refused to, resign, and inquired the reason for the demand. The secretary replied: "Well, they think we can get better results with somebody else." The relator answered that he would not resign. The secretary said, "Well, then, if you will not resign, the board will fire you when they meet this afternoon." On June 1, 1918, the relator received a letter from the secretary as follows:

"The board of public works, at its regular meeting on May 31st, 1918, removed you from the position of superintendent of buildings, for cause and the good of the service, same to take effect June 1st, 1918."

The removal became effective in fact on that day. The record does not show that any controversy had arisen between relator and the members of the board of public works over the manner in which he had conducted the office, or that any complaint by them had been made to him on that subject. It appears however, that, upon an occasion not long prior to relator's removal, W. A. Durham, who was the chairman of the board of public works, had inquired of relator as to the number of men needed by him as superintendent; that relator answered that he thought he could get along with one additional man. Mr. Durham testified that it was his desire to cut down expense and reduce the number of men under the relator, but does not testify that a demand was made upon relater to reduce his force, or that relator refused to comply with any request made upon that subject. Mr. Durham testified also that the reason he called for relator's resignation was that he could not see the necessity for so large a force of inspectors. But, it appears from the provisions of section 27 of article 4 of the charter that the hoard of public works, by resolution confirmed by ordinance of the common council, was empowered to "fix a general schedule of the number, grade, and compensation of all agents and employees in the department under its control." And the circumstances referred to and the reason given by Mr. Durham were not pleaded by the defendants in their return to the writ.

The relator's case is planted, upon the ground that he was at the time of his removal superintendent of buildings de jure, and that he was such by virtue of the provisions of the charter of the city, and that his removal was accomplished in violation of the provisions of the charter. Defendants' adverse contentions made in somewhat alternative form are to be noticed. They insist that relator was merely the de facto superintendent of buildings at the time of his removal—first, that, if his tenure was under the charter, it was invalid for the reasons that by the charter his appointment could be made only by the board of public works, and that he was not so appointed; next, that the charter did not operate to repeal the clause of the "Building Code" ordinance, above mentioned, whereby it was provided that the superintendent of buildings should be appointed by the mayor for the definite term of two years, and that this term had long before expired.

An examination of the various provisions leads irresistibly to the conclusion that the provisions of the charter operated as a repeal of so much of the "Building...